Contemporary International Legal Norms on Slavery: Problems of Judicial Interpretation and Application, Holly Cullen
Holly Cullen
Since the 1998 decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Kunarac,1 courts, particularly international courts, have often grappled with the definition of slavery. There is general agreement amongst these courts that the correct definition is that set out in Article 1 of the 1926 Slavery Convention: ‘Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.2 Forced labour, with which slavery is often compared, and confused, is defined in International Labour Organisation (ILO) Convention No. 29 Concerning Forced and Compulsory Labour as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.3
Slavery in the contemporary context lies, often uncomfortably, between two much clearer concepts: legal slavery or ownership, which has been all but completely abolished, and coercion or force, which is the main characteristic of forced labour. Contemporary slavery is de facto slavery, which involves the exercise of powers attaching to ownership without the legal right of ownership. Judges have fallen back on either legal ownership or coercion rather than grappling with the paradox inherent in the definition of slavery. One exception is Hayne J, of the Australian High Court. He expressed the paradox in his concurring opinion in Rv Tang as ownership of a person being illegal but the crime of slavery being defined as the exercise of the powers attaching to the right of ownership over a person.4 The consequence is that courts must look for ‘the powers that an owner would have over another person, if the law recognised the right to own that other’.5
The European Court of Human Rights (ECtHR) initially attempted to restrict the definition of slavery to legal ownership of a person,6 although it later rejected that approach.7 The most frequent strategy employed by courts, however, has been to ignore the question of what powers of ownership have been exercised and to focus instead on the degree of control and coercion that has been exercised over the victim. This is, to some extent, compounded by the fact that issues relating to slavery sometimes arise in the context of cases of human trafficking, and the definition of human trafficking requires proof of coercion or deception.8 The result is that the distinction between slavery and forced labour is sometimes lost.
In the following discussion, the case law on slavery from Kunarac onwards is analysed in light of interpretation and application of the definition of slavery. Control is central to this judicial activity, and judges often employ control in the same way as the idea of coercion is used in forced labour. Nonetheless, control can be linked with the concept of possession, which is the key power attaching to the right of ownership. Many of the cases where slavery was at issue are based on facts which would have supported a finding that powers attaching to the right of ownership were being exercised, which would lead to judgments more in keeping with the 1926 definition of slavery. Judicial attention to the nature of control, and whether it equates to possession or merely to coercion, is the key element which is often lacking or under-developed.
A. Grappling with the 1926 Definition
The judgment of ICTY Trial Chamber II in Prosecutor v Kunarac et al,9 confirmed on appeal, has become a reference point for other international courts and tribunals in defining slavery.10 The defendants were charged with enslavement as a crime against humanity under Article 5(c) of the ICTY Statute.11 As the Statute had been drafted after the events forming the basis of the indictment, the court had to consider the customary international law content of the crime of enslavement at the time of those events.12 This was particularly important because the Statute itself does not define enslavement.13 Trial Chamber II stated that the definition from the 1926 Slavery Convention is the ‘abiding’ definition, and used it as its starting point.14 It determined that the definitions of slavery and the slave trade in the 1926 Convention had attained the status of customary international law, as these had been almost universally accepted and because the 1926 definition of slavery had been the basis for later international treaty provisions.15 After reviewing these relevant international legal measures, the Trial Chamber concluded that enslavement as a crime against humanity in customary law existed and consisted of the exercise of any or all of the powers attaching to the right of ownership over a person, and that the mens rea of that crime was the intentional exercise of such powers.16 The definition of slavery was refined slightly by the Appeal Chamber, which noted that chattel slavery had evolved to encompass contemporary forms of slavery in which any or all of the powers attaching to the right of ownership are exercised.17 It asserted that even in these forms of slavery, some destruction of the juridical personality of the victim occurs, but is less extreme than in chattel slavery, although it did not elaborate on this point in its application of the definition to the case at hand.18
Perhaps the most important part of the judgment is the list of acts which might constitute indications of enslavement. It is worth citing this in full, as it is here that we start to see a combination of language reflecting incidents of ownership (slavery) and coercion (forced labour):
Under this definition, indications of enslavement include elements of control and ownership: the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, although not necessarily, involving physical hardship; sex; prostitution; and human trafficking … The ‘acquisition’ or ‘disposal’ of someone for monetary or other compensation, is not a requirement for enslavement. Doing so, however, is a prime example of the exercise of the right of ownership over someone. The duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved; however, its importance in any given case will depend on the existence of other indications of enslavement. Detaining or keeping someone in captivity, without more, would, depending on the circumstances of the case, usually not constitute enslavement. (Emphasis added.)19
Factors to be taken into account in determining whether enslavement has occurred are:
control of someone’s movement, control of physical environment, psychological measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.20
Control, which could be related either to coercion or to possession as a power attaching to the right of ownership, is key to the ICTY’s analysis. However, the listed factors tend towards proving coercion. Application of the definition to the events setting out the indictment also demonstrates how the borderline between slavery (incidents of ownership) and forced labour (coercion) is difficult to draw in practice. The ICTY itself noted that the Nuremburg judgment did not draw a clear distinction between deportation to slave labour and slavery, noting that one conviction ‘interpreted slave or forced labour to constitute not only a war crime, but also enslavement as a crime against humanity’.21 Trial Chamber II was therefore alive to the theoretical distinction between slavery and forced labour and to the problems of making practical distinctions. Nonetheless, the key findings of fact which supported the conviction for enslavement combined elements of ownership and coercion. The main finding on which the conviction was based was repeated sexual exploitation of the victims.22 In addition, there was evidence of sale of some victims by the accused to other soldiers.23 The Trial Chamber found that the victims were treated as the personal property of the accused, but also that he compelled obedience to his commands.24 It found additionally that the victims were not free to leave the premises where they were held, even though they were given keys to the house, again emphasising the atmosphere of coercion.25 As a result, while the Chamber based its convictions on evidence supporting incidents of ownership, it also used evidence of coercion without specifically linking such evidence to any particular incident of ownership. This was reinforced in the appeal where the Prosecutor argued that the Trial Chamber had not erred in law, asserting that it had ‘correctly identified the indicia of enslavement to include, among other factors, the absence of consent or free will of the victims’,26 although it also found that lack of consent was not an element of the crime.27
It is worth remembering that Kunarac is the first, contemporary, international judicial decision on slavery. The ICTY had no precedents to guide it. It is therefore hardly surprising that the decision blurs the concepts of slavery and forced labour. Both Trial and Appeal Chambers could have focused more clearly on the incidents of ownership evident from the factual record: control which amounted to possession, use of victims and their sale to others. Requiring the prosecution explicitly to prove not merely control in the sense of loss of voluntariness, but rather control amounting to possession would have made the prosecution more difficult. Nonetheless, it should still have succeeded on the facts presented at trial, as the case demonstrated a very high degree of control supporting a finding of possession.
More recently, the International Criminal Court (ICC) has examined slavery in the context of the crime of sexual slavery in the case of Prosecutor v Katanga.28 Sexual slavery, in Article 8(2)(b)(xxii)-2 of the Elements of Crimes, uses the phrase ‘exercise any or all of the powers attaching to the right of ownership’ and includes ‘purchasing, selling, lending or bartering such a person or persons, or imposing on them a similar deprivation of liberty’.29 A similar deprivation of liberty may be forced labour or servile status.30 There is therefore some ambiguity as to whether sexual slavery is only seen as a form of slavery or whether it includes sexual servitude, which, it might be noted, is covered in s 270.6 of the Australian Commonwealth Criminal Code. The ICC Pre-Trial Chamber said that sexual slavery could be regarded as a particular form of enslavement, but still referred to forced labour and servile status.31 It also was of the view that sexual slavery covered forced marriage, domestic servitude or other forced labour involving compulsory sexual activity, including rape—all circumstances ‘involving the treatment of women as chattel’.32 Although there is language in the judgment concerning rights of ownership, most of the focus is on deprivation of liberty, both generally and in terms of sexual activity.33
Moving beyond international criminal law, regional human rights courts have interpreted the definition of slavery in the context of human rights violations. Instead of seeking to determine whether an individual has engaged in the practice of slavery, these courts must determine whether a state has acted in a way which infringed on the individual right not to be subject to slavery. In Siliadin v France, the European Court of Human Rights considered the case of a Togolese girl who had been brought to France through deception and had been forced to perform domestic labour and childcare without pay. The Court first decided whether she had been subject to forced labour.34 Following its own case law, and Article 2 of ILO C 29, it decided that this had been the case, as the applicant had been under the threat of police action against her unlawful immigration status, and had not performed the work freely.35 It then moved on to the question of whether the applicant’s situation also amounted to slavery or servitude. Although the Court adopted the definition of slavery set out in the 1926 Slavery Convention, it took the view that it would be necessary to establish that a ‘genuine right of legal ownership’ had been exercised over the applicant, reducing her to the status of an object, eliminating effectively her own independent legal personality.36 It therefore decided that she had been held in servitude rather than slavery. The Court took too narrow a view of what is covered by the prohibition of slavery. By requiring the actual exercise of legal ownership, it denuded the prohibition on slavery of any utility. By failing to include the possibility of de facto slavery, it failed to recognise fully the degree of rights violation endured by the applicant. While the result was favourable to Ms Siliadin, in that it determined that her rights under Article 4 of the European Convention on Human Rights (ECHR) had been violated and that France had failed to provide for adequate criminal law to deal with the people who had enslaved her, the Court denied her the recognition of the reality she had suffered, which was slavery.
The Court re-examined its approach to the definition of slavery in Rantsev v Cyprus and Russia, bringing its analysis more in line with the 1926 definition.37 A Russian woman had been brought to Cyprus on an ‘artiste’ visa, where she had been employed as a prostitute. She died in ambiguous circumstances after indicating a desire to return home. Arguably, her situation fit the definition of human trafficking in the Palermo Protocol. In light of the increasing tendency to link human trafficking and slavery, it is hardly surprising that the Court, encouraged by non-governmental organisation (NGO) submissions,38 engaged in a new exercise of definition. In fact, the Court rejected a request by the Cypriot government to strike the application out following that government’s offer of compensation to the application and acknowledgement of failings in the police investigation relating to Ms Rantseva’s death, relying in part on the lack of case-law on Article 4 ECHR in relation to human trafficking and the need for elaboration of state obligations under that Article.39 The Court began with the 1926 Slavery Convention definition,40 and further noted that the definition had also been applied by the ICTY in Prosecutor v Kunarac,41 and formed the basis of enslavement in the ICC Statute.42
This was particularly significant in the Court’s assessment as to whether there had been violations of Article 4, which states in its first paragraph, ‘No one shall be held in slavery or servitude’, and in its second, ‘No one shall be required to perform forced or compulsory labour’. The Court began by saying that it ‘has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein’.43